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Decision No. 14,222

Appeal of WENDY and ROBERT L., on behalf of DANIEL MAX L., from actions of the Board of Education of the Oceanside Union Free School District and Dr. Herbert Brown, Superintendent, regarding reimbursement for tutorial services.

Decision No. 14,222

(October 12, 1999)

Ehrlich, Frazer & Feldman, attorneys for respondents, Christine M. LaPlace and Jerome H. Erlich, Esqs., of counsel

MILLS, Commissioner.--Petitioners seek reimbursement of $2223.00 for private tutoring and tuition costs they incurred relating to their son Daniel’s reading problems, which they assert were inadequately addressed by the Oceanside Union Free School District ("district"). They also seek the cost of future tuition payments. The appeal must be dismissed.

Daniel has been a student in the district since January 1996. His second grade teacher recommended additional reading support for him when he entered the third grade, and so beginning in Fall 1996, he participated in a reading assistance program. The following Spring, petitioners obtained additional private tutoring in reading for Daniel. In the fourth grade, Daniel continued in the reading assistance program and with private tutoring. On July 30, 1998, after Daniel finished the fourth grade, petitioners had him evaluated by Hofstra University’s Reading/Writing Center ("Hofstra"), where he eventually enrolled for a semester. On August 27, 1998, petitioners met with school officials and requested that the district pay for Daniel’s tutoring at Hofstra. On September 3, 1998, Superintendent Herbert Brown denied petitioners’ request. This appeal ensued.

Petitioners seek reimbursement of the filing fee for this petition and the monies they expended for private tutoring and for testing and tuition at Hofstra, totaling $2223.00, because they allege the district’s teachers and administrators have failed to adequately address Daniel’s reading problems.

Respondents contend that the Commissioner lacks the authority to award costs or damages, and the petition fails to state a claim, is untimely and improperly served. Respondents further assert that the district provided appropriate educational services to Daniel.

I will first address several procedural issues. Section 275.8(a) of the Commissioner’s regulations requires that an appeal must be initiated by personal service of the petition upon each named respondent. Petitioners name only the board of education in their notice of petition and name Dr. Brown in the caption. However, the record indicates and respondents confirm that Dr. Brown was never served with a copy of the petition. Rather, service was made only upon the district clerk on behalf of respondent board (see, 8 NYCRR "275.8). Therefore, to the extent the petition requests that I take action against the superintendent, such claims must be dismissed for failure to properly join him as a party to this appeal.

An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The petition was served upon respondent board on September 24, 1998, within 30 days of Dr. Brown’s September 3 denial of petitioners’ request. However, respondent correctly contends that petitioners’ claims for tutoring costs incurred between April 1997 and March 1998 are untimely, since they were incurred more than 30 days prior to September 24. Thus, the only timely claim would be for $177.50, paid on September 12, 1998, which represents a portion of the fall semester’s tuition at Hofstra.

However, it is well settled that the Commissioner of Education lacks authority to award damages, costs or attorney's fees (See, e.g., Application of Coleman, 37 Ed Dept Rep 391, Decision No. 13,887; Appeal of Totlis and Richard, 36 id. 476, Decision No. 13,779; Appeal of Rackley, 35 id. 5, Decision No. 13,445). Petitioners seek an award of the costs of a private tutor and tuition for a private program. Thus, to the extent that petitioners seek damages, the appeal must be dismissed.

Moreover, petitioners have failed to meet their burden of proof. In an appeal to the Commissioner, petitioners bear the burden of establishing all the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Trombley, 39 Ed Dept Rep ___, Decision No. 14,189) and demonstrating a clear legal right to the relief requested (Appeal of Logan, 38 id. 694, Decision No. 14,120). I note that since Daniel is not classified as a student with a disability, the provisions of the Individuals with Disabilities Education Act (IDEA) and Education Law ""4401, etseq., do not apply. Petitioners have failed to demonstrate that they have a legal right to the reimbursement of the costs they request, or that respondents failed to address Daniel’s reading problems or acted arbitrarily or capriciously.

I have reviewed petitioners’ other contentions and find them without merit.